Who can bring a fatal compensation claim in Scotland?

Who can make a fatal compensation claim?

It is important to those that have experienced the loss of a loved one as a result of a fatal circumstances that there is recourse to acknowledgement and compensation for financial burdens which arise after the loss.

Solicitors will look to the Damages (Scotland) Act 2011 to determine the eligible relatives that can make a fatal compensation claim as well as what types of claims can be made when a person has died as a result of accident or negligence.  A claim relating to a loved one that has died as a result of a fatal accident or negligence, in general terms, would be pursued by a ‘dependant’ of the person who has died.

In Scotland, the law allows certain individuals to bring a fatal claim for compensation. The right to claim typically falls upon the executor to a will, deceased person's relatives or dependents, or as defined by the law. Eligible relatives may include:

• Spouse or Civil Partner: The surviving spouse or civil partner of the deceased may be eligible to claim compensation. There is potential provision, in limited circumstances, by a former spouse or civil partner of the deceased.
• Children: Dependent children of the deceased may have the right to claim damages for the loss of parental care, guidance, and financial support. This can include adopted and anyone who was considered by the deceased as a child of the family, although caution has to be exercised beyond blood or adopted children.
• Parents: In certain circumstances, parents of the deceased may have the right to claim damages, particularly if they were financially dependent on the deceased.
• Executors to the Estate: Executors can bring a claim on behalf of the deceased's Estate for injury or losses incurred by the deceased prior to death, and for any expenses falling upon the Estate which arise from the death.
• Other Dependants: A brother, sister, aunt, niece or nephew of the deceased who were financially dependent or had a close bond of love and affection to the deceased may also be eligible to claim damages but this would require detailed advice. 

What is claimed in a fatal claim?

Fatal claims typically cover financial losses resulting from the death, including loss of financial support, loss of earnings if unable to work due to bereavement, funeral expenses, and other associated costs.

When your loved one experienced pain and suffering before passing, a claim can be made for that pain and suffering after their death by their estate. This is called transmissible solatium which is a payment for the pain and suffering the person endured before their death and paid to the estate of the person that has died. The payment is then dealt with under the terms of their will or as agreed during the action.

Eligible family members, as defined under the Damages Act, are those able to make a claim for the grief and loss they have experienced as a result of the death.  Solicitors will call this a loss of society payment.  This is in addition to financial loss that has been caused by the person’s death. In terms of a child who experiences a negligent or accident death of a parental death, the child would be able to include a claim for loss of financial support claim, if appropriate in their circumstances.

Important exclusions from eligibility

The definition of a legal person with full legal rights is someone that was born alive. Therefore, a fatal claim cannot be brought under the Damages (Scotland) Act 2011 in respect to a still birth or miscarriage. An injury claim would be limited to physical and psychological injury experienced by the mother as a result of the still birth or miscarriage.

Conclusion

It is important to consult with a legal professional who specialises in personal injury and fatal claims in Scotland to understand specific eligibility criteria, the process for making such claims and the likely claims that can be made as an individual and the estate.